( 1 ) PHOOL Mohd. stands convicted under Section 307 of the Indian Penal Code. The sentence awarded to him is five years rigourous imprisonment. He feels he has wrongly been convicted and sentenced.

( 2 ) THE learned counsel for the appellant has urged only two grounds in support of the appeal. His first contention is that Section 307 of the Penal Code is not attracted. The second point relates to the quantum of sentence.

( 3 ) THAT on August 7, 1990 at about 8. 45 AM the appellant inflicted a churi blow on the left side of the neck of Mohd. Shafiz stands proved not only from the statement of the victim who has entered into the witness box as PW-7 but also from the evidence of the eye witness namely Abdul Quam (Public Witness -8 ). It is probably because of this convincing eye witness account that the learned counsel for the appellant did not ask for acquittal.

( 4 ) HAS the prosecution made out a case under Section 307 of the Penal Code? This then, is the question which needs to be answered and I feel that, for the reasons which I propose to record presently the answer must go against the prosecution.

( 5 ) IT is the admitted case of the prosecution itself that th